Monday, 19 June 2017

Gajalakshmi Paramasivam

19 June 2017                                          
Chettiar v Chettiar?

Feedback from the Diaspora leaders as well as from Sri Lankan leaders conveys concern over the current situation in Northern Sri Lanka. The more I thought about it, the more value I could place in Mr. Wigneswaran’s intuition – that Colombo was behind this problem. The ‘indicator’ to Mr. Wigneswaran on the basis of his intuition was shared as follows :
[Standing on a podium set at the entrance of his residence in Jaffna yesterday, the former Supreme Court Judge told a sea of supporters congregated there that when Regional Development Minister Field Marshal Sarath Fonseka visited Jaffna two weeks ago he had said that...... 'very soon Wigneswaran will be ripped off his post'.
He noted: "Between us there isn't any issue and I was wondering why he made that statement, but it provided a clue that the plot was hatched in Colombo," he added.] – Ceylon Today
We use Performance Indicators in Management towards early identification of rights and wrongs. These are intuition based but may not have a rule/law through which to share the intuition. The basis is the same as a good vote based on belief.  An Eastern LTTE Leader whom I identified with as a person genuine to his work – shared with us – such an example in relation to Karuna Amman who was Eastern LTTE leader. As per that sharing – they were all staying at a place in Vaharai when all of a sudden Karuna had said they had to leave – and that something was going to happen. They did – as is the way of unofficial forces and saved themselves from the air-attack minutes later. It was through that sharing that I learnt that Karuna was true to his work as a fighter.
As per that intuition of mine as a Colombo person, Mr. Wigneswaran would identify with the natural structures in Colombo more than any other member of the Northern Provincial Council. THAT is the value from Mr. Wigneswaran to the folks of Northern Sri Lanka. It was the same intuition that prevented Tamils from marking the LTTE and other Militants ‘wrong’ to those they considered to be ‘outsiders’. Likewise, Southerners in the case of JVP.
Managing Sri Lanka’s North needs that intuition from within. To ‘show’ good management to the wider world – including the UN – one needs intuition with that wider world. Mr. Wigneswaran is often found fault with by Government supporters for his claims of ‘Genocide’ made after he became Chief Minister. As a politician, if he felt that as part of the People of Northern Province it is his DUTY to use that form to oppose any repetition of the causal forces on both sides of the ethnic border. By seeking the intervention of the Governor who is the President’s representative, the members of the Provincial Council erred in Administration. Unless Mr. Wigneswaran’s conduct as a person was so negative for the Northern Province, there were no grounds for such move. In fact those who moved against Mr. Wigneswaran along this pathway in support of those against whom the inquiry was conducted have revealed their lack of commitment to Vaddukoddai Resolution 1976, which is the consolidation of all our investments in Independence and self-governance. It is something that is not available to Sinhalese.

In his letter dated 16 June 2017, the TNA leader – ‘Tells Mr. Wigneswaran’:
["You stated in the Provincial Council that you would act on the basis of the report of the board of inquiry. You have called for the resignations of the two ministers found guilty. No one has complained about that decision. The complaint is about the action taken by you against the other two ministers in regard to whom there is no finding of guilt by the board of inquiry. This action is being seen as a violation of the principles of natural justice and unwarranted," the MP said.]

Natural Justice is based on our Truth. Its principles in the case of an individual would look different (diverse) to its principles in the case of another individual. Likewise, religions and political groups. In this instance, Mr. Sampanthan has no jurisdiction to exercise power over Mr. Wigneswaran through his (Mr. Sampanthan’s) form of Natural Justice. To do so is like Trincomalee telling Jaffna what to do in Administration. We do not want Indian invasion of Jaffna – the way Trincomalee has been taken over by Indians.

Mr. Sampanthan does not have the mandate of Jaffna folks to express judgment through Natural Forces. We to whom Jaffna is home have that mandate. By sacrificing the comforts of Colombo life – in everyday living, Mr. Wigneswaran earned his ownership in Jaffna in addition to ownership in Colombo. In other words he is Sri Lankan – the same way Mr. Sampanthan is through Trincomalee and Colombo homes.

As I said recently to a fellow Diaspora member from Vaddukoddai recently, the true investment we make in structures by foregoing immediate benefits – develop as structures within us and support us in wider world. The individual thus is able to naturally progress towards family, community, nation and the globe. At each stage the structure would look different in form for the same person. That is the basis of rebirth. When based on Truth – each form would represent Sovereignty / Independence.

The example that comes to mind relates to how I was demoted in Mallakam Courts on the basis of my second marriage. The source was my sisters in law who wanted my husband to write his share of the intestate estate of  their brother over to them. My husband declined due to their lack of gratitude and/or show of respect - for resourcing their migration to Australia. His status within the family remained the same as before the sponsorship. The ‘outcome’ was negative and hence he refused. They then stated that he had brought shame by marrying me. This was to show emotional reaction due to their disappointment. Had they chosen an issue that did not concern wider world – they would not have erred in the Court of Natural Justice. But by stating as they did – they demoted themselves not only  in our global family structure – but in Australian official system which upholds our marriage as lawful. The only just reason would have been belief. Truth being the basis of belief – if they believed that the marriage brought them shame – then their migration to Australia also brought them demotion in status. It eventually did within family and community. In the meantime, the Colombo lawyer representing them ran with it and accused me of being greedy for other people’s money.  When one makes the connection between cause and effect – one is judging. As per my ‘intuition’ in Colombo Tamil Community – I was moved (I feel by Divine powers) to use the case law of ‘Storer Duraisamy Yogendra & Balasubramaniam Thavabalan Vs. Velupillai Tharmaratnam’ as follows when I filed the Appeal papers as a lay litigant:

 [The Questions Involved : . Whether the matter was heard with the purpose of upholding the lawful Rights of the parties concerned or whether the Judgment was asked for and given on the basis of benefits with little discussion on Rights. In other words,  whether the Proceedings & Judgment took a  Cause based approach or whether they were more Effects based – distinguished as follows by Hon Justice Saleem Marsoof, P.C., J.  in Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam:

[The decision of five judges of this Court in the Rajendran Chettiar case is not only binding on this Bench as it is presently constituted, but also reflects the practice of Court both in England as well as in Sri Lanka. As Lord Denning, M. R. observed in Salter Rex and Co. v. Ghosh [1971] 2 All ER 865 at page 866 – “Lord Alverstone CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR‟s test has always been applied in practice.”]

2.     Errors in  Law -  If the Proceedings  were driven by Cause of the action – then the following approach seems the better fit: “It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.”   - Lord Alverstone, C.J cited  by Hon Justice Saleem Marsoof, P.C., J.  in Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam   ]

I did not expect at all for the Counsel who represented Mr. Yogendra in the above matter to represent our opposition in the Testamentary case and that too – without any prior advice to us or our instructing Attorney at law. When I saw Mr. Parathalingam in High Court of Jaffna I thought he was there for another matter. By then Mr. Parathalingam was already  representing us in our Colombo Land matter. When Mr. Parathalingam got up and stated that he represented all the parties in opposition to us – I was shocked. I wrote to him and our instructing solicitor to terminate his services and started representing myself. That was natural to me because the ‘structure’ was more important than the outcome and the force of belief was more important than structure. Mr. Parathalingam despite his high profile was defeated by Mr. Manivannan who represented us at that stage and who was respectful of the stand I took – very much at the risk of losing my Colombo case. As the litigant – who respected the Court process and went beyond to bring my Truth – that court became the Court of Natural Justice and hence our win against the great lawyer Mr. Parathalingam. The Truth upheld in that Court which became the Court of Natural Justice due to my Truth – was that I would sacrifice my investments to win a matter of much greater monetary value than the Jaffna matter – to uphold my belief in the official system. Thus the money lust was returned to the sisters who were ungrateful once they had custody over common powers.
In many ways the current crisis in Northern Sri Lanka is fundamentally the same as in the ‘Chettiar vs Chettiar’ case which to me was important due to the need to Apply for Leave to Appeal.  To my mind, in essence one has to have leave to Appeal where one does not seem to  have just grounds to use the Appeal process.
The  members of the Northern Provincial Council needed that Leave from their own Council through the rules and laws of the Council, to act as they did. The members who voted for them are the heirs of all those to whom Northern Province is ‘home’. To act further on that communication, the Governor needs the approval of the laws governing his position. The Governor had the duty to ‘educate’ the members whose application was ‘bad in law’.
This is a crisis for Colombo Administration also – even though they may not consciously recognize it. In the Court of Natural Justice – this is also a case against lesser powers hastily ruling ‘outside the law’. Those to whom structures are more important than immediate outcomes must win and this to my mind is Mr. Wigneswaran and not Mr. Sampanthan, about whose communication, the Sunday Times reports as follows:
[ TNA leader R. Sampanthan in a letter to the Chief Minister said, ‘Unwarranted action should not be the cause for promoting disunity and disturbing the functioning of the Northern Provincial Council.” Mr Sampanthan said that to  resolve the issue, the Chief Minister should withdraw the action he took against the two ministers who were found not guilty.]
If Mr. Wigneswaran has erred – that needs to go through proper Appeal process, once it has come into the Common area of Administration. Had Mr. Sampanthan been mentally involved in the workings of the Northern Provincial Council – he would have prevented this matter  from going into Administration. At that level it would have been  like taking a decision at family level – for the sake of Unity or at least to ‘show’ unity, for institutional purposes. But now that the horse has bolted Mr. Sampanthan has no jurisdiction – just as family ways have no jurisdiction in a Court of Law unless they are expressed in the language of law. 

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